September 2014

In what appears to be the first-ever RCRA § 7003 “imminent and substantial endangerment” order for vapor intrusion, US EPA Region 4 issued an order yesterday for the US Army to take expedited corrective measures at the former Fort Gillem site in Forest Park, Georgia. The former Fort’s primary missions, which lasted from the 1940s until the base was closed in 2011 under the Base Realignment and Closure Act (BRAC) V, were training and materiel supply from World War II through the Persian Gulf conflict. As a result, the US EPA alleges that these activities resulted in soil, sediment, surface water, and groundwater contamination. Specifically, the US EPA alleges:

“[r]elatively large contaminated groundwater plumes” with maximum concentrations exceeding 100 times the maximum contaminant level under the Safe Drinking Water Act; and

the migration of TCE and other contaminants in groundwater beyond the Site boundary into the adjoining residential neighborhoods.

The work required by the Order, among other things: (i) would evaluate whether indoor and/or ambient air in residential and other properties surrounding the former installation contains hazardous contaminants and, if necessary, require that the Army mitigate unacceptable risks; and (ii) would identify and evaluate all private drinking water wells and springs in the area for hazardous contaminants and, if necessary, would require that the Army mitigate unacceptable risks.

In its press release, the US EPA recognizes that the US Army has been studying indoor air vapor intrusion at the Site, but the US EPA is “concerned at the service’s failure to implement the expeditious mitigation measures that are revealed by the study to be warranted for numerous residents.” Because “the Army has significantly deviated from the approved study work plan,” the US EPA “deems it necessary” to issue this RCRA § 7003 order.

A copy of the order is available here. The US EPA Region 4’s press release is available here.

Secretary-General Ban Ki-moon is hosting the Climate Summit 2014 starting this week at UN headquarters in NYC. The purpose of the Summit is to engage leaders and advance climate action. The UN's ultimate objective is to rally international support for an ambitious global agreement by 2015 that limits the world to less than a 2-degree Celsius rise in global temperature. The Summit will serve as a public platform for leaders at the highest level—all UN Member States, as well as finance, business, civil society, and local leaders from public and private sectors—to catalyze ambitious action on the ground to reduce emissions, strengthen climate resilience, and mobilize political will for an ambitious global agreement.

On Sunday, climate change advocates, frustrated with international inaction on global warming, marched through the streets of Manhattan. An estimated 311,000 people marched the 2.2 mile route in NYC, making the event the largest climate-related event in history. Many other rallies around the world called on governments for change.

U.S. Secretary of State John Kerry provided opening remarks to launch a week of climate change talks in NYC yesterday, saying he's hopeful the discussions will set the tone for upcoming negotiations on an international agreement. Some 125 countries will attend the Summit, according to the Climate Group, which is organizing the event.

According to the UN and the International Energy Agency, governments must agree to emission cuts to foster development of renewable energy and low-carbon energy sources. Green energy will require investments of an estimated $1 trillion annually to limit warming to 2 degrees and minimize the climate change worst case scenarios. Clean energy investments over the past year are estimated at $254 billion.

Another critical issue to be addressed this week among public and private sector representatives is carbon pricing. The World Bank reports that about 40 countris and 20 cities have carbon pricing policies or plan to put them in place soon. On a related note, an estimated 30 companies are expected to commit to business leadership criteria on carbon pricing developed by several UN entities in cooperation with The Climate Group and the CDP.

Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014. On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate. Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a confidential draft version of the TSCA reform bill that was still being negotiated. According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith. In contrast, Senator Boxer has released our confidential proposal to the press. That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement. As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.

Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations. Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment."

Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council. In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.

This week celebrates the 50th anniversary of the U.S. Wilderness Act (Act) signed by Lyndon Johnson in 1964 to provide protected places of solace away from the noise, hustle, pollution and mechanization of modern life. Wilderness areas are the nation's best reminder of the untrammeled open spaces that existed before the arrival of the first European settlers. No roads, vehicles or permanent structures are allowed in these areas and logging, mining and motorized travel are prohibited. A wilderness area designation is the highest level of protection the federal government can bestow on any lands.

The Act created the National Wilderness Preservation System originally establishing 54 wilderness areas in 13 states. Today there are 758 wilderness areas in 44 states and Puerto Rico. Approximately 5% of the United States land mass is protected as wilderness areas or about 109,511,038 acres.

Upon signing the Act 50 years ago, President Johnson initiated a call to action that remains equally important today: "To the pioneer of history, the wilderness was a foe to be conquered. Today's pioneer has a new purpose to preserve some remnants of that wilderness from the onrush of modern civilization."

EPA recently announced it plans to take final action later this year to authorize collection of non-tax debts by garnishing wages which may occur without a court order. Public comments submitted to date on EPA's proposed action express concern that the Agency may be exceeding its authority and that such actions may deprive individuals of their due process rights.

The EPA has claimed this new authority by citing the Debt Collection Improvement Act of 1996, which gives all federal agencies the power to conduct administrative wage garnishment, provided that the agency allows for hearings at which debtors can challenge the amount or the terms of a repayment schedule. Administrative Wage Garnishment (AWG) would apply only after EPA attempts to collect delinquent debts and after Treasury attempts to collect delinquent debts through other means. The agency would provide notice "prior to any action," giving the debtor the opportunity to "review, contest or enter into a repayment agreement."

EPA's proposal has been actively opposed by a number of watch dog and industry organizations. In addition, members of the House and Senate have argued that the proposed action is an improper expansion of EPA authority and many note it could hurt public impressions of EPA.

EPA's response has been that the Agency is proposing to do what 30 other federal agencies have done and what Congress directly empowered all agencies to do: collect debts owed to the federal government in a responsible and fair way.

EPA's proposed rule to amend its claims collection standards to include AWG can be viewed at 79 Fed. Reg. 37,704.

The amount EPA has collected in fines has increased since President Obama took office with $252M received in 2012, up from $96M in 2009. As Dan Goldbeck of the American Action Forum appropriately noted ". . . the order is certainly controversial and is a strong reminder that even a few pages of the Federal Register can pack serious administrative consequences."

Unregulated trash burning around the globe is pumping far more pollution into the atmosphere than shown by official records. A new study led by the National Center for Atmospheric Research estimates that more than 40 percent of the world's garbage is burned in such fires, emitting gases and particles that can substantially affect human health and climate change.

The new study provides the first rough estimates, on a country-by-country basis, of pollutants such as particulates, carbon monoxide, and mercury that are emitted by the fires. Such pollutants have been linked to serious medical issues.

Unlike emissions from commercial incinerators, the emissions from burning trash in open fires often go unreported to environmental agencies and are left out of many national inventories of air pollution. For that reason, they are not incorporated into policy making. The new study, published in Environmental Science & Technology, was funded by the National Science Foundation, which is NCAR's sponsor. It was co-authored by scientists form the University of Montana and the U.S. Environmental Protection Agency who were also involved in measuring the composition of trash-burning emissions.

Trash burning is a global phenomenon. But it is most prevalent in developing countries where there are fewer trash disposal facilities, such as landfills and incinerators.

The amount of garbage burned in remote villages and crowded megacities is likely on the rise, as more people worldwide are consuming more goods. The trash often contains discarded plastics and electronics as well as traditional materials such as food scraps and wood.

The countries that produce the most total waste, according to the study's methods, are heavily populated countries with various levels of industrial development: China, the United States, India, Japan, Brazil, and Germany. But the study concluded that the nations with the greatest emissions from trash burning are populous developing countries: China, India, Brazil, Mexico, Pakistan, and Turkey.

The study concluded that the fires produce emissions equivalent to as much as 29 percent of officially reported human-related global emissions of small particulates (less than 2.5 microns in diameter), as well as 10 percent of mercury and 64 percent of a group of gases known as polycyclic aromatic hydrocarbons (PAHs). These pollutants have been linked to such significant health impacts as decreased lung function, neurological disorders, cancer, and heart attacks.

Trash burning in some countries accounts for particularly high quantities of certain types of pollutants. In China, for example, the emissions are equivalent to 22 percent of reported emissions of larger particles (those up to 10 microns in diameter).

The global impact on greenhouse gas emissions appears to be less, though still significant, with burning trash producing an amount of carbon dioxide equal to an estimated 5 percent of reported human-related emissions. (By comparison, the Kyoto Protocol strove for a global 5 percent cut among industrialized countries in greenhouse-gas emissions derived from fossil fuels.) In certain developing countries—such as Lesotho, Burundi, Mali, Somalia, and Sri Lanka—the trash burning produces more carbon dioxide than is tallied in official inventories. This discrepancy can be important in international negotiations over reducing greenhouse gas emissions.

The study summarized in "Global Emissions of Trace Gases, Particulate Matter and Hazardous Air Pollutants from Open Burning of Domestic Waste" is available at University Corporation for Atmospheric Research at http://www2.ucar.edu/.

On September 2, 2014, a United States District Court for the Western District of Texas ordered that the Sierra Club reimburse Energy Future Holdings Corporation and Luminant Generation Company $6.4 million in attorneys fees for filing what the court described as a "frivolous" Clean Air Act (CAA) lawsuit. SeeSierra Club v. Energy Future Holdings Corporation (W.D. Tex. Aug. 29, 2014). In its complaint, the Sierra Club alleged that the defendants' coal-fired power plant was in violation of the CAA's particulate and opacity limits and sought $330 million in civil penalties and $140 million in pollution control upgrades. The court granted partial summary judgment in favor of defendants, determining that there were no particulate emission violations at the power plant. Then, after a three day bench trial, the court concluded that there also were no opacity violations at the power plant. In its memorandum opinion, the court determined that an award of costs of litigation, including attorneys' fees, was warranted pursuant to 42 U.S.C. §7604(d).

42 U.S.C. § 7604(d) provides that a court, in issuing any final order under the citizen suit provisions of the CAA, may award litigation costs if it determines such an award to be appropriate. Here, the District Court relied upon the United States Supreme Court's decision in Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978) to conclude that an award of litigation costs to prevailing defendants is appropriate where a plaintiff's claims were "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so."

In concluding that a fee award was appropriate, the District Court noted the following:

Here, Defendants were successful against all of Plaintiff's claims. Plaintiff was unable to show a prima facie case of a [particulate matter] violation, and the claim was dismissed at the summary judgment stage of litigation. Plaintiff was aware that Big Brown's Title V permit exempted it from [particulate matter] deviations during maintenance, startup, or shutdown activities prior to filing suit, which rendered the claim meritless. And at trial, Plaintiff failed to prove any causation or injury to its lone standing witness or any other individual. Moreover, the one standing witness in the case was not even placed on Plaintiff's witness list even with the awareness that proving causation and linking the opacity violations at issue to injuries was required in order to prevail. Additionally, despite Plaintiff's knowledge that EFH had no role in the ownership or operations of Big Brown, it persisted in keeping EFH as a Defendant in the lawsuit. Even prior to the filing of the lawsuit, the TCEQ, who are experts in this field, had previously documented through its investigation reports that there were no [particulate matter] or opacity violations of the CAA at Big Brown. Defendants informed Plaintiff that these reports cannot be undermined. But even with this knowledge at its disposal, Plaintiff admitted that they failed to analyze or investigate the TCEQ investigation reports and filed suit. Consequently, after immense discovery, expense, and use of judicial resources, this Court found no evidence supporting any deficiency in the TCEQ's investigation reports. The evidence at trial, however, did reveal that during approximately 98.5 percent of the time that Big Brown was under normal operations, the opacity was generally 10 percent or less—far below the 30 percent limit. Moreover, each and every one of the opacity events that triggered a TCEQ investigation report found that an affirmative defense pursuant to the Texas Administrative Code was satisfied.

As such, the court concluded that plaintiff's claims were frivolous, unreasonable and groundless and therefore awarded defendants the sum of $6,446,019 in attorneys' fees, expert witness fees and costs from the Sierra Club. The Sierra Club has indicated that it intends to appeal this decision.